Collapse to view only § 6991. Definitions
- § 6991. Definitions
- § 6992. National Appeals Division and Director
- § 6993. Transfer of functions
- § 6994. Notice and opportunity for hearing
- § 6995. Informal hearings
- § 6996. Right of participants to Division hearing
- § 6997. Division hearings
- § 6998. Director review of determinations of hearing officers
- § 6999. Judicial review
- § 7000. Implementation of final determinations of Division
- § 7001. Conforming amendments relating to National Appeals Division
- § 7002. Authorization of appropriations
The term “adverse decision” means an administrative decision made by an officer, employee, or committee of an agency that is adverse to a participant. The term includes a denial of equitable relief by an agency or the failure of an agency to issue a decision or otherwise act on the request or right of the participant. The term does not include a decision over which the Board of Contract Appeals has jurisdiction.
The term “appellant” means a participant who appeals an adverse decision in accordance with this subchapter.
The term “case record” means all the materials maintained by the Secretary related to an adverse decision.
The term “Director” means the Director of the Division.
The term “Division” means the National Appeals Division established by this chapter.
The term “hearing officer” means an individual employed by the Division who hears and determines appeals of adverse decisions by any agency.
The term “implement” refers to those actions necessary to effectuate fully and promptly a final determination of the Division not later than 30 calendar days after the effective date of the final determination.
The term “participant” shall have the meaning given that term by the Secretary by regulation.
The Secretary shall establish and maintain an independent National Appeals Division within the Department to carry out this subchapter.
The Division shall be headed by a Director, appointed by the Secretary from among persons who have substantial experience in practicing administrative law. In considering applicants for the position of Director, the Secretary shall consider persons currently employed outside Government as well as Government employees.
The Director shall serve for a 6-year term of office, and shall be eligible for reappointment. The Director shall not be subject to removal during the term of office, except for cause established in accordance with law.
The position of the Director may not be a position in the excepted service or filled by a noncareer appointee.
Except as provided in paragraph (2), the Director shall be free from the direction and control of any person other than the Secretary or the Deputy Secretary of Agriculture.
The Division shall not receive administrative support (except on a reimbursable basis) from any agency other than the Office of the Secretary.
The Secretary may not delegate to any other officer or employee of the Department, other than the Deputy Secretary of Agriculture or the Director, the authority of the Secretary with respect to the Division.
The Assistant Secretary for Administration is authorized to investigate, enforce, and implement the provisions in law, Executive order, or regulations that relate in general to competitive and excepted service positions and employment within the Division, including the position of Director, and such authority may be further delegated to subordinate officials.
If an officer, employee, or committee of an agency determines that a decision is not appealable and a participant appeals the decision to the Director, the Director shall determine whether the decision is adverse to the individual participant and thus appealable or is a matter of general applicability and thus not subject to appeal. The determination of the Director as to whether a decision is appealable shall be administratively final.
The Director shall recommend to the Secretary persons for appointment as hearing officers as are necessary for the conduct of hearings under section 6997 of this title. The Director shall appoint such other employees as are necessary for the administration of the Division. A hearing officer or other employee of the Division shall have no duties other than those that are necessary to carry out this subchapter. Each position of the Division shall be filled by an individual who is not a political appointee.
Not later than 10 working days after an adverse decision is made that affects the participant, the Secretary shall provide the participant with written notice of such adverse decision and the rights available to the participant under this subchapter or other law for the review of such adverse decision.
If an officer, employee, or committee of an agency makes an adverse decision, the agency shall hold, at the request of the participant, an informal hearing on the decision.
With respect to programs carried out through the Farm Service Agency (or other office, agency, or administrative unit of the Department assigned to carry out the programs authorized for the Farm Service Agency under section 6932 of this title), the Secretary shall maintain the informal appeals process applicable to such programs, as in effect on October 13, 1994.
Subject to subsection (b), a participant shall have the right to appeal an adverse decision to the Division for an evidentiary hearing by a hearing officer consistent with section 6997 of this title.
To be entitled to a hearing under section 6997 of this title, a participant shall request the hearing not later than 30 days after the date on which the participant first received notice of the adverse decision.
The Director and hearing officer shall have access to the case record of any adverse decision appealed to the Division for a hearing.
Upon a timely request for a hearing under section 6996(b) of this title, an appellant shall have the right to have a hearing by the Division on the adverse decision within 45 days after the date of the receipt of the request for the hearing.
A hearing on an adverse decision shall be held in the State of residence of the appellant or at a location that is otherwise convenient to the appellant and the Division.
The evidentiary hearing before a hearing officer shall be in person, unless the appellant agrees to a hearing by telephone or by a review of the case record. The hearing officer shall not be bound by previous findings of fact by the agency in making a determination.
The hearing officer shall consider information presented at the hearing without regard to whether the evidence was known to the agency officer, employee, or committee making the adverse decision at the time the adverse decision was made. The hearing officer shall leave the record open after the hearing for a reasonable period of time to allow the submission of information by the appellant or the agency after the hearing to the extent necessary to respond to new facts, information, arguments, or evidence presented or raised by the agency or appellant.
The appellant shall bear the burden of proving that the adverse decision of the agency was erroneous.
The hearing officer shall issue a notice of the determination on the appeal not later than 30 days after a hearing or after receipt of the request of the appellant to waive a hearing, except that the Director may establish an earlier or later deadline. If the determination is not appealed to the Director for review under section 6998 of this title, the notice provided by the hearing officer shall be considered to be a notice of an administratively final determination.
The final determination shall be effective as of the date of filing of an application, the date of the transaction or event in question, or the date of the original adverse decision, whichever is applicable.
Not later than 30 days after the date on which an appellant receives the determination of a hearing officer under section 6997 of this title, the appellant shall submit a written request to the Director for review of the determination in order to be entitled to a review by the Director of the determination.
Not later than 15 business days after the date on which an agency receives the determination of a hearing officer under section 6997 of this title, the head of the agency may make a written request that the Director review the determination.
The determination of the hearing officer and the Director shall be based on information from the case record, laws applicable to the matter at issue, and applicable regulations published in the Federal Register and in effect on the date of the adverse decision or the date on which the acts that gave rise to the adverse decision occurred, whichever date is appropriate.
Subject to regulations issued by the Secretary, the Director shall have the authority to grant equitable relief under this section in the same manner and to the same extent as such authority is provided to the Secretary under section 7996 of this title and other laws. Notwithstanding the administrative finality of a final determination of an appeal by the Division, the Secretary shall have the authority to grant equitable or other types of relief to the appellant after an administratively final determination is issued by the Division.
A final determination issued by the Director shall be effective as of the date of filing of an application, the date of the transaction or event in question, or the date of the original adverse decision, whichever is applicable.
A final determination of the Division shall be reviewable and enforceable by any United States district court of competent jurisdiction in accordance with chapter 7 of title 5.
On the return of a case to an agency pursuant to the final determination of the Division, the head of the agency shall implement the final determination not later than 30 days after the effective date of the notice of the final determination.
Each month, the head of each agency shall publish on the website of the Department any updates to the reports submitted under paragraph (1).
Except as provided in subparagraph (B), this subsection shall apply only with respect to functions of the Farm Service Agency or the Commodity Credit Corporation that are under the jurisdiction of a State, county, or area committee established under section 590h(b)(5) of title 16 or an employee of such a committee.
If the decision of the State, county, or area committee has become final under paragraph (2), no action may be taken by the Farm Service Agency, the Commodity Credit Corporation, or a State, county, or area committee to recover amounts found to have been disbursed as a result of a decision in error unless the participant had reason to believe that the decision was erroneous.
For purposes of this subsection, a reference to the “Farm Service Agency” includes any other office, agency, or administrative unit of the Department assigned the functions authorized for the Farm Service Agency under section 6932 of this title.
There are authorized to be appropriated such sums as may be necessary to carry out the activities of the Division.